State of Tennessee v. Kadrean J. Brewster ( 2022 )

07/11/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 28, 2022
STATE OF TENNESSEE v. KADREAN J. BREWSTER
Appeal from the Criminal Court for Knox County
No. 109156 Kyle A. Hixson, Criminal Court Judge
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No. E2021-00793-CCA-R3-CD
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Defendant, Kadrean J. Brewster, pled guilty to possession with the intent to sell more than
0.5 grams of cocaine. He was sentenced to eight-years split between one year in
confinement and the remainder of the sentence on probation. Following revocation
hearings, Defendant’s probation was revoked and Defendant was ordered to serve the
balance of his sentence in confinement. On appeal, Defendant contends the trial court
abused its discretion in revoking his probation and ordering him to serve the sentence in
confinement. Following our review of the entire record and the briefs of the parties, we
affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
JILL BARTEE AYERS, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and JOHN W. CAMPBELL, SR., JJ., joined.
Richard C. Stooksbury III, Knoxville, Tennessee, for the appellant, Kadrean J. Brewster.
Herbert H. Slatery III, Attorney General and Reporter; Holli M. Hagemeyer, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Jordan Murray,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual and Procedural Background
On October 19, 2016, a Knox County Grand Jury returned a true bill charging
Defendant with two counts of possession with the intent to sell more than 0.5 grams of
cocaine within one-thousand feet of a drug-free zone (counts one and three), two counts of
possession with the intent to deliver 0.5 grams or more of cocaine within a one-thousand
feet of a drug-free zone (counts two and four), felony evading arrest (count five), and
unlawful possession of amphetamine (count six). On August 4, 2017, Defendant pled
guilty to a reduced charge in count one of the indictment, possession with the intent to sell
more than 0.5 grams of cocaine, without the school zone enhancement, a Class B felony.
The judgment of conviction was entered on September 22, 2017, reflecting a Range I,
eight-year sentence in split confinement. Defendant was ordered to serve twelve months
at seventy-five percent release in the Knox County Detention Facility and the remainder of
his sentence was suspended to supervised probation. The remaining five counts of the
indictment were dismissed under the plea agreement. Defendant was referred to the Knox
County Detention Facility’s Intensive Treatment Program for an evaluation. If accepted,
Defendant was to enroll in the program until successfully completed.
Defendant’s first violation of probation warrant was issued less than two years after
the original sentencing hearing. The probation revocation warrant and later amended
warrant alleged that Defendant was arrested for theft and failed to report the arrest; that he
tested positive for amphetamine and methamphetamine; that he admitted to using heroin;
that he tested positive for marijuana and admitted to using marijuana; and that he had failed
to pay supervisory fees, courts costs, and fines. After a hearing, Defendant’s probation
was revoked and he was ordered to complete rehabilitation at CenterPointe. Upon
completion of the program, his probation was restarted with an effective end date of July
18, 2027.
On July 24, 2020, a violation of probation warrant was issued alleging that
Defendant had violated five rules of probation. Responding to a call regarding a non-fatal
overdose, officers found Defendant unconscious in his bathroom. He was taken to the Fort
Loudon Medical Center for treatment where he admitted to Drug Task Force Agent Marty
Stanley that he passed out from snorting heroin. Defendant was also behind in making
payment on his court fines and supervision fees (Rule 19).
Defendant was appointed counsel on August 25, 2020, and was released on his own
recognizance on September 17, 2020, “conditioned upon him continuing to report to
Cherokee Health and Helen Ross McNabb.” The case was then continued to October 1,
2020. The record shows that a capias was issued for Defendant’s arrest on October 28,
2020, but it was set aside the next day on payment of costs. The case was continued to
December 3, 2020.
According to the record, no further activity occurred in the case until February 19,
2021, when an order was entered amending the violation of probation warrant to include a
new charge for aggravated domestic assault in Roane County. On January 23, 2021,
Defendant was charged with assaulting the victim by choking her, dragging her by her hair,
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throwing her on the ground, and kicking her in the ribs. The victim managed to get a ride
to the hospital. The victim gave a written statement about the assault. Attached to the
statement were photographs of the victim’s injuries. Defendant was arrested two days later
and released the same day. He did not report this arrest to his probation officer
At the revocation hearing on May 5, 2021, defense counsel advised the trial court
that Defendant wished to waive the revocation hearing, submit to being in violation of his
probation, and asked the court to be referred to “Enhanced Probation, the Day Reporting
Center, and Samantha Monday.” The State did not oppose Defendant’s submission to the
violations but abstained from taking a position on further placement pending a report on
Defendant’s qualification into the programs.
Under oath, Defendant testified that by submitting to the violations, he understood
that he was waiving the right to a hearing on the allegations in the warrants and “forc[ing]
the State to call witnesses and prove . . . that [he] actually violated the terms of [his]
probation.” After being advised of his rights by the trial court, Defendant voluntarily
waived an evidentiary hearing and submitted to the allegations in the violation of probation
warrant as amended. Based on Defendant’s waiver of rights and submission to the
violations, the trial court found Defendant in violation of his probation but reserved
judgment on the consequence of the revocation:
[B]ased upon your waiver of rights and submission, I find that you have
violated the terms of your probation, but I’m going to reserve judgment on
your case, refer you to Enhanced probation, to DRC, and I’m also going to
ask Ms. Monday if she would work with you as well.
The trial court estimated that “45 days” was needed to “make those referrals” and set the
second hearing for June 25, 2021.
On July 1, 2021, a hearing was held to determine the consequence of the probation
revocation. Defense counsel informed the trial court on the status of the referrals:
As of this date, Enhanced [probation] has not seen [Defendant]. Some of that
was because of the tight turn around. I couldn’t be here to take this up last
Friday. I was going to be in Anderson County, so I asked the Court to set it
for today.
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And so Enhanced – Ms. Mooneyham1 said she might be able to see him. She
wasn’t able to. But DRC has given a report that said they are willing to take
[Defendant] if he has a halfway house. He does have a bed date at the
Integrity House on . . . July 6th, on Tuesday. I am asking the Court today to
place him on DRC and allow him to be transported on Tuesday to Integrity
House.
The State opposed further placement on probation based on the nature of the violations and
Defendant’s repeated failure to abide by the conditions of release despite repeated
opportunities for treatment and rehabilitation:
I think it’s important for Your Honor to know is that it seems that through
the history of this case, looking at my file, seems that there’s been multiple
opportunities to try and provide [Defendant] with treatment. Seems that
inpatient treatment was attempted. It seems that Vivitrol was contemplated
at some point in time. From my understanding is that [Defendant] – that that
just didn’t happen, Judge.
The State’s position is that he’s been given multiple opportunities at this
point time. The sentence, again, the original sentencing dates back to
September of 2017 on an eight-year sentence. Judge, the State just believes
that he’s been given multiple opportunities at this point in time and continues
to violate. We believe that a Department of Correction sentence is
appropriate at this point in time
At the conclusion of the hearing, the trial court recounted Defendant’s history of
supervision since he entered his guilty plea on August 4, 2017:
[Defendant] was placed on an eight-year probation back on September 22,
2017. There was a probation revocation proceeding that took place in 2019
where [Defendant]’s probation was revoked, but the sentence was restarted.
Shortly thereafter – that happened on July 19th of 2019 – not shortly
thereafter, it was a year. It was a year after that. And July of 2020 the current
VOP (violation of probation) warrant was filed. We ROR’d (released on his
own recognizance) [Defendant] in September. He was ordered to report to
Cherokee and Helen Ross McNabb.
1
It is unclear from the record whether this is the same person identified as “Samantha
Monday” at the May 5, 2021 hearing.
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A capias was issued in October, but it was set aside the very next day, and
then the VOP was amended in February to reflect the new charge in Roane
County. And [Defendant], as we stated, has submitted to being in violation
including the amendment.
The trial court also reviewed the facts underlying the aggravated domestic assault
in Roane County, found that Defendant had violated the terms of his probation as set forth
in the VOP warrant as amended, and ordered Defendant to serve the balance of the sentence
in the Tennessee Department of Correction.
From this judgment, Defendant now appeals.
Analysis
On appeal, Defendant contends the trial court abused its discretion by ordering him
to serve his sentence in confinement instead of on intensive probation through the DRC, or
some other alternative sentence because the latter is the least severe measure necessary to
achieve the purpose and principles of sentencing. The State contends the trial court
properly exercised its discretion because Defendant had shown himself to be “a poor
prospect for any measure less restrictive than confinement” due to his repeated probation
violations. We agree with the State.
Trial courts possess the authority to revoke probation upon finding by a
preponderance of the evidence that a defendant has violated the conditions of probation.
See T.C.A. §§ 40-35-310(a), -311(e)(1) (2021).2 Upon finding that a defendant has
violated probation, the trial court may: (1) order incarceration for some period of time; (2)
cause execution of the sentence as it was originally entered; (3) extend the defendant’s
probationary period not exceeding one year; (4) return the defendant to probation on
appropriate modified conditions; or (5) resentence the defendant for remainder of the
unexpired term to a sentence of probation. See T.C.A. §§ 40-35-308(c)(1), (2); -310; -
311(e)(1), (2) (2021).
“On appeal from a trial court’s decision revoking a defendant’s probation, the
standard of review is abuse of discretion with a presumption of reasonableness so long as
the trial court places sufficient findings and the reasons for its decisions as to the revocation
2
Multiple changes were made to both statutory sections effective July 1, 2021, the same
date of the entry of the revocation order. See Tenn. Code Ann. §§ 40-35-310 to -311 (2021).
Those changes do not affect the issues before the court.
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and the consequence on the record.” State v. Dagnan, 641 S.W.3d 751, 759 (Tenn. 2022).
When the trial court fails to place its reasons on the record, the reviewing court may either
conduct a de novo review if the record is sufficiently developed for the court to do so, or
remand the case to the trial court to make findings. Id. (citing State v. King, 432 S.W.3d
316, 327-28 (Tenn. 2014)); see also State v. Arthur M. Stewart, No. M2021-00595-CCA-
R3-CD, 2022 WL 1236982, at *3 (Tenn. Crim. App. Apr. 27, 2022) no perm. app. filed.
Probation revocation requires a two-step consideration by the trial court. First, the
trial court determines whether a preponderance of the evidence exists to revoke a
defendant’s probation. Dagnan, 641S.W.3d at 757, n.4. Should the trial court find that a
defendant has violated his probation, the trial court then determines the appropriate
consequence for the revocation. Id. at 757. Trial courts are not required to hold an
additional hearing to determine the proper consequence for a revocation. Id. However,
“[s]imply recognizing that sufficient evidence exist[s] to find that a violation occurred does
not satisfy [the two-step consideration].” Id. at 758. Moreover, “consideration of past
criminal history is only appropriate in the second part of the two-step analysis.” Id. at 759,
n.5 (citing State v. Kennedy Fleming, No. E2017-02352-CCA-R3-CD, 2018 WL 6787580,
at *3 (Tenn. Crim. App. Dec. 26, 2018) (trial court may consider a defendant’s past
criminal history to determine, based on a totality of the circumstances, the defendant’s
amenability to continued probation)).
Here, Defendant does not dispute the trial court’s finding that he violated his
probation. Indeed, Defendant admitted that he had violated the conditions of his release as
alleged in the violation of probation warrant and amended warrant and his admission alone
constitutes substantial evidence to support revocation. See State v. Ross Pruitt, No. E2015-
01494-CCA-R3-CD, 2016 WL 3342356, at *4 (Tenn. Crim. App. June 8, 2016) (“[t]he
Defendant’s admission that he violated the terms of his probation, alone constitutes
substantial evidence to support the revocation”); State v. Daniel Earl Gentry, No. E2018-
01010-CCA-R3-CD, 2019 WL 1224637, at *2 (Tenn. Crim. App. Mar. 15, 2016) (“the
defendant stipulated to violating the terms of his probation, establishing an adequate basis
for the trial court’s revocation of his probation”). Based on Defendant’s concession, we
find no abuse of discretion in step one of the trial court’s analysis.
Although the Supreme Court released Dagnan after the parties in this case had filed
their briefs, Defendant contends the trial court committed reversible error by failing to
consider his conditional acceptance into the DRC program and the principles of sentencing
in determining the consequence of the revocation. See, e.g., T.C.A. § 40-35-103(1). He
argues that “there is a presumption for an alternative sentence” given his conditional
acceptance into the DRC program. He also argues that confinement is not necessary
because he lacks a long history of criminal conduct, the seriousness of his convicted drug
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offense was not shocking, and he has not “displayed a pattern of criminal conduct which
would warrant protection of society by confinement.”
As the State notes, the principles of sentencing for determining confinement and an
initial request for probation under Tennessee Code Annotated section 40-35-103(1) are not
relevant to our analysis of the trial court’s probation revocation decision. “Because the
trial court’s authority is limited by the nature of the proceedings, it follows that the trial
court is not obligated to consider the sentencing statute in a probation revocation hearing.”
State v. Steven Thacker, No. M2011-01061-CCA-R3-CD, 2012 WL 1072005, at *3 (Tenn.
Crim. App. Mar. 28, 2012); see also State v. Norman B. Thompson, No. E2000-01017-
CCA-R3PC, 2001 WL 298633, at *3 (Tenn. Crim. App. Mar. 28, 2001) (“the trial court is
not required to reconsider the principles of sentencing in a probation revocation”).
Therefore, Defendant’s reliance on authority relevant to the denial of probation is
misplaced regarding the revocation of probation. Once the trial court found that Defendant
had violated his probation, the trial court was under no duty to presume that Defendant
should be reinstated to probation or some other alternative sentence. See, e.g., T.C.A. §§
40-35-308, -310, 311.
Turning our attention to the trial court’s reasoning for ordering incarceration as a
consequence of revocation, we find no abuse of discretion. At the conclusion of the second
hearing, the trial court chronicled Defendant’s history from the original sentencing which
included a prior revocation of probation. The trial court first found that Defendant violated
his probation based on his submission to the violations under oath at the first hearing.
Although the trial court’s reasoning for the second consideration is rather brief, the record
reflects a separate discretionary decision by the trial court for imposing incarceration. The
record shows that the trial court scheduled a separate hearing to give time for Defendant to
be qualified for the DRC program and to consider the consequence of the revocation. To
that end, the trial court gave Defendant fifty-six days to fully qualify for the DRC program.
Defendant complains the trial court failed to consider his conditional acceptance into the
DRC program. However, Defendant was given additional time to be fully accepted into
the DRC program. There is no evidence in the record that Defendant took the necessary
steps to be fully accepted into the program to avoid incarceration.
Furthermore, the trial court emphasized the seriousness of the aggravated domestic
assault charge in ordering Defendant to serve his sentence in incarceration. See Fleming,
2018 WL 6787580, at *3 (no abuse of discretion in ordering confinement as a consequence
of probation revocation where defendant was arrested for the aggravated domestic assault
of his girlfriend and was accused of “choking” the victim causing her to nearly lose
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consciousness).3 This court has repeatedly held that “an accused, already on [a suspended
sentence], is not entitled to a second grant of probation or another form of alternative
sentencing.” State v. Dannie Brumfield, No. M2015-01940-CCA-R3-CD, 2016 WL
4251178, at *3 (Tenn. Crim. App. Aug. 10, 2016) (quoting State v. Jeffrey A. Warfield, No.
01C01-9711-CC-00504, 1999 WL 61065, at *2 (Tenn. Crim. App. Feb. 10, 1999)); see
also State v. Timothy A. Johnson, No. M2001-01362-CCA-R3-CD, 2002 WL 242351, at
*2 (Tenn. Crim. App. Feb. 11, 2002). Because Defendant has not overcome the
presumption that the trial court’s decision was reasonable, he is not entitled to relief.
Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed.
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JILL BARTEE AYERS, JUDGE
3
Although it was not the basis for the trial court’s reasoning, we are aware that under newly
amended Tennessee Code Annotated section 40-35-311, the trial court may commence execution
of the original judgment if the court finds by a preponderance of the evidence that the defendant
violated his probation by committing a new felony. See T.C.A. § 40-35-311(e)(2) (2021).
Domestic aggravated assault is a Class C felony. See, e.g., T.C.A. § 39-13-102(e)(1)(A).
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